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Hemraj @ Raju Balkrishna Meshram … vs State Of Maharashtra Thr. The … on 8 June, 2018

1 Apeal117-17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

Criminal Appeal No.117 of 2017

Hemraj @ Raju Balkrihna Meshram,
Aged about 45 years,
Occupation: Teacher,
R/o Bampewada, Tahsil Sakoli,
District- Bhandara. .. APPELLANT

.. Versus ..

State of Maharashtra, through the
Mohadi Police Station Officer,
Mohadi. .. RESPONDENT

Mr. A.R. Kalpe, Advocate h/f Mr. A.M.Quazi, Advocate for
Appellant.
Mrs. Swati Kolhe, Additional Public Prosecutor for Respondent

….

CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : JUNE 04, 2018.
DATE OF PRONOUNCHING JUDGMENT : JUNE 08 ,2018

JUDGMENT

1. The appellant has filed this appeal challenging

conviction and sentence imposed by the Court of Special Judge

under the Protection of Children from Sexual Offences Act,

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2012 (POCSO Act), Bhandara (trial Court) under Section 376(2)

(n) of the Indian Penal Code (IPC), whereby he has been

sentenced to suffer rigorous imprisonment for 10 years and to

pay fine of Rs.3,000/-, in default to suffer rigorous

imprisonment of one month.

2. The appellant was charged for having committed

offences under Sections 376 (2) (f) and (n) of the IPC and

Sections 4 and 6 of the POCSO Act. The trial Court found the

appellant guilty of offences under all the above provisions,

however, since the punishment provided for offence under

Section 376 (2) (n) of the IPC was greater in degree as

compared to the punishments provided for the rest of the

offences, the trial Court awarded punishment only under

Section 376 (2) (n) of the IPC, in view of Section 42 of the

POCSO Act and thereby sentenced him to suffer the aforesaid

sentence of rigorous imprisonment.

3. The prosecution against the appellant, the sole

accused, in the present case was initiated upon a report dated

12.06.2015 submitted by Asha Shende (PW1), mother of the

prosecutrix (PW6). On the basis of the report submitted by the

said complainant i.e. mother of the prosecutrix, first

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information report (FIR) dated 12.06.2015 was registered

against the appellant under the aforesaid provisions. The

allegations made in the complaint were that the appellant,

being a teacher in Saraswati Madhyamik Vidyalaya, Jambhora

where the prosecutrix was studying, lured her and indulged in

sexual intercourse with her, thereby committing the aforesaid

offences. It was claimed that when the complainant and her

husband, being parents of the prosecutrix, came to know about

such acts of the appellant, they took away their daughter from

the said school and admitted her in Zilla Parishad School at

Kardi. But, the activities of the appellant continued and even in

May, 2015, he took away the prosecutrix and stayed with her in

a lodge, having sexual intercourse with her. When the

prosecutrix reached the home of her aunt and thereupon

narrated the details of the activities of the appellant to the

complainant, on 12.06.2015 the aforesaid report was lodged,

leading to the registration of the FIR against the appellant.

4. On the basis of the aforesaid FIR, investigating officer

(PW9) took up investigation in the matter. He arrested the

accused. Thereafter, he visited the lodge and other places of

the incident, preparing spot panchanama as also seizure memo

of the clothes and other items. The prosecutrix was also sent

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for medical examination, where she was examined by the

Doctor (PW10) who took samples of hair, vaginal swab and

other material, which was sent for chemical analysis. The

Doctor also issued medical examination certificate, which

recorded that hymen of the prosecutrix was torn.

5. In order to prove its case, the prosecution examined

10 witnesses which included the parents of the prosecutrix

(PW1 PW2), the prosecutrix herself (PW6), Head Masters of

the two Schools (PW3 PW7), Village Development Officer

(PW8) for proof of date of birth, the investigating officer (PW9)

and the Doctor (PW10).

6. The panch witnesses (PW4 PW5) for the spot

panchanama as well as the seizure memo, turned hostile and

they were cross-examined on behalf of the prosecution. During

the course of the evidence, the prosecution placed on record

notices issued by Head Master (PW3) of the School where the

appellant was employed, which were marked as Exhibits 15 to

18, pertaining to the months of August, 2014, April 2015 and

May, 2015, whereby it was recorded that the appellant had

been indulging in misbehaviour with students and that he was

having illicit relations with a student of Zilla Parishad School,

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Kardi. These notices were issued by the Head Master (PW3),

not only to the appellant, but also to the Secretary of the

Society that was running the School, where the appellant was

employed. Upon completion of recording of evidence of the

prosecution witnesses, the statement of the appellant

(accused) was recorded under Section 313 of the Code of

Criminal Procedure. The appellant simply denied the

circumstances put to him and upon being asked as to why the

witnesses were deposing against him, he simply stated that it

was due to competition in the Schools that he was falsely

implicated. The appellant did not examine any defence

witness.

7. On 29.06.2016, the trial Court passed its judgment

and order holding that the prosecution had proved its case

against the appellant and accordingly the trial Court convicted

and sentenced the appellant in the aforesaid manner.

Aggrieved by the said judgment and order of the trial Court,

the appellant has filed the instant appeal.

8. Mr. A.R. Kaple, Advocate holding for Mr. A.M. Quazi,

Advocate for the appellant, submitted that the impugned

judgment and order passed by the trial Court was not

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sustainable as the evidence and material on record was not

examined in the proper perspective. It was submitted that

there was delay in lodging the FIR because the alleged

incidents of rape were said to have started from April 2013 and

continued upto 09.05.2015. It was submitted that if the first

alleged incident was taken into consideration, there was delay

of more than two years in lodging the FIR and even if the last

date of 9.5.2015 was considered, there was delay of about 33

days in registering the FIR , which was fatal.

9. It was further submitted that there were

discrepancies in dates and details of the incident as given by

the prosecutrix and her parents and that the prosecutrix never

came forward to lodge any report against the appellant. It was

further contended that the versions given by the Head Masters

of the two Schools were based on hearsay and that the staff of

the lodge where the appellant had allegedly taken the

prosecutrix, was not examined. It was further contended that

the seizure in the present case was not proved as the panch

witnesses had turned hostile and that even the medical

evidence was not sufficient to support the case of the

prosecution. It was contended that when the evidence of the

prosecutrix was not trustworthy, corroboration of the same was

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required and that such corroborative evidence was absent in

the present case, thereby demonstrating that the conviction

and sentence imposed by the trial Court was not justified. It

was further submitted that the evidence of the Village

Development Officer (PW8) regarding proof of age of the

prosecutrix was not sufficient as the original register was not

brought before the Court. The learned counsel appearing for

the appellant relied upon the following cases:-

(i) Vasant Mahadeo Powar .vs. State of
Maharashtra -2016 ALL MR (Cri) 2436.

(ii) Vilas Namdeo Roundal .vs. State of
Maharashtra -2015 ALL MR (Cri) 1596.

(iii) Shrimant Pundalik Dudhal .vs. State of
Maharashtra -2014 ALL MR (Cri) 3803

(iv) Deepak Jitendra Sawant .vs. State of
Maharashtra -2017 ALL MR (Cri) 2058

(v) Amit Ranglal Shende .vs. State of Maharashtra-
Criminal Appeal No.639/2017 decided on
8.2.2018 (Nagpur Bench).

10. On the other hand, Mrs. Swati Kolhe, learned

Additional Public Prosecutor appearing on behalf of the State,

submitted that there was sufficient documentary and oral

evidence to prove the guilt of the appellant and that the

judgment and order passed by the trial Court did not deserve

any interference. It was submitted that there was sufficient

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evidence to prove that the date of birth of the prosecutrix was

11.04.2000, demonstrating that she was less than 16 years old

when the appellant committed rape on her. It was also

contended that even if the panch witnesses had turned hostile,

relevant portion of their evidence had been correctly

considered by the trial Court along with the evidence of

investigating officer to hold that the appellant was guilty. It

was further contended that even if the other evidence on

record was not considered, the evidence of the prosecutrix

herself was sufficient to prove the guilt of the appellant. It was

submitted that when her evidence was blemish-less and wholly

trustworthy, no corroborative evidence was required in the

present case. The learned APP relied upon judgments of the

Hon’ble Supreme Court in the case of Bharwada Bhoginbhai

Hirjibhai .vs. State – AIR 1983 (SC) 753, Narender

Kumar .vs. State (N.C.T. of Delhi) – AIR 2012 SC 2281

and Md. Iqbal .vs. State of Jharkhand – (2013) 14 SCC

481.

11. In the present case, the allegation against the

appellant is that he has misused the trust placed in a teacher

by the student and her parents, while committing the act of

rape against the prosecutrix. The incidents of sexual

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intercourse have been claimed to have occurred between April

2013 and 9.5.2015. It has also come on record in the evidence

that the parents of the prosecutrix shifted her from the School

where the appellant was employed, to another school and yet

the incidents continued to occur. It is when the prosecutrix

failed to come home for three days and then went to the house

of her aunt, that the parents confronted her and they came to

know about the illicit relations between the appellant and the

prosecutrix. It is in this situation that on 12.06.2016, the

mother of the prosecutrix lodged the report, leading to

registration of FIR against the appellant. Considering the

circumstances of a minor daughter being victim of such

incidents, it cannot be said that the parents were at fault for

not having filed a report with the Police at an earlier point of

time. Therefore, the contention pertaining to delay in

registration of FIR raised on behalf of the appellant is without

any substance and it deserves to be rejected.

12. The proof of the offence in the present case depends

on the question of age of the prosecutrix at the time of the

incident. In the present case, although in the oral report dated

12.06.2015 lodged by the mother (PW1) leading to registration

of FIR, the date of birth of the prosecutrix is not mentioned, in

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the evidence before the Court she has stated that the date of

birth of the prosecutrix was 11.04.2000. In support of the said

fact, Village Development Officer (PW8) has been produced by

the prosecution, who has placed on record birth certificate

(Exh.27), which shows the date of birth of the prosecutirx as

11.04.2000. This birth certificate is based on the computerized

record of the Gram Panchayat Kardi. The learned counsel

appearing for the appellant has vehemently contended that in

the absence of the original register of the Gram Panchayat

regarding entries of births and deaths, the birth certificate

produced by the aforesaid witness was not believable. The said

contention cannot be accepted because the birth certificate

(Exh.27) is a public document and it has been proved by the

aforesaid witness being Village Development Officer of the

Gram Panchayat. There is no reason to disbelieve the said

document and the evidence of the said witness, only because

the original register was not placed before the Court. There is

nothing brought in the cross-examination of the said witness to

disbelieve his testimony. Therefore, it is evident that the

prosecution has successfully proved the age of the prosecutrix

being less than 16 years at the time of the incident. This has a

crucial bearing on the present case.

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13. As regards the panch witnesses (PW4 and PW5)

having turned hostile, it cannot be said that it would lead to the

prosecution case being rendered unreliable. The panch

witnesses pertaining to seizure and spot panchanama have

indeed turned hostile, but that cannot be the sole ground for

disbelieving the entire exercise undertaken by the investigating

officer (PW9) during the process of investigation to prove the

guilt of the appellant.

14. The learned counsel for the appellant has vehemently

contended that details of dates and the manner in which the

incidents of rape occurred, have not been stated consistently

by the prosecutrix and her parents. It is contended that there

are serious discrepancies in the same, leading to the

prosecution story being rendered unreliable. In this context,

the evidence of the prosecutrix (PW6) needs to be analysed. A

perusal of the deposition of the prosecutrix and her cross-

examination shows that she has specifically stated about her

date of birth. She has also given details of how the appellant

called her for breakfast in his house and raped her. The

prosecutrix has also stated that he took her to the lodge and

committed sexual intercourse with her and further that he

threatened to kill her if she narrated the incident to her

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parents. The last incident of the prosecutrix being taken to a

lodge and being subjected to sexual intercourse on 8.5.2015,

has also been stated by her. In the cross-examination, her

evidence has largely remained consistent with her deposition.

A perusal of the evidence of the mother (PW1) shows that the

incidents of sexual intercourse by the appellant with the

prosecutrix have been stated and it has been narrated how the

Head Master of the School had informed her and her husband

about the fact that the prosecutrix had left the school. It has

been contended on behalf of the appellant that certain incident

about her husband having assaulted the accused has not been

stated by her in the report or the statement made to the Police

and that, therefore, her evidence could not be believed. But,

such minor discrepancies or omissions cannot render the

evidence of PW1 as unreliable.

15. A perusal of the evidence of father (PW2) also shows

that he has made statements similar to that of his wife and

that the incidents of sexual intercourse by appellant with his

daughter have been stated. A perusal of the evidence of the

three witnesses i.e. prosecutrix (PW6), her mother (PW1) and

her father (PW2) shows that it appears to be consistent and it

cannot be said that there are any major discrepancies, which

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would render their evidence unreliable.

16. Apart from this, the notices issued by PW3 (Head

Master of the School where appellant was employed) at

Exhibits 15 to 18 also assume significance. Notice dated

9.8.2014 (Exh.15) issued by PW3 to the Secretary of the

Society running the school, notice dated 9.8.2014 (Exh.16)

issued by PW3 to the appellant, notice dated 30.4.2015

(Exh.17) issued by PW3 to Secretary of the Society running the

School and the notice dated 13.5.2015 (Exh.18) issued by PW3

to the appellant are contemporaneous documents, which show

that the appellant had been indulging in misbehaviour with

students of the School and that there was specific reference to

illicit relations between the appellant and a student of Zilla

Parishad School Kardi. These documents show that the

activities of the appellant were noticed and that he had been

taking away the prosecutrix from School for indulging in sexual

intercourse, as stated by the prosecutrix in her own evidence.

These documents at Exhs. 15 to 18 support the version of the

prosecutrix and the case of the prosecution.

17. Insofar as medical evidence is concerned, it has been

contended on behalf of the appellant that the medical

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certificate issued by the Doctor (PW10) showing torn hymen

was not enough to support the case of the prosecution because

a clear opinion regarding sexual intercourse was not given in

the said report. It was further contended that when seizure of

pubic hair, nail clippings and vaginal swab was not believable

and when the Chemical Analyser’s report did not show any

semen on the clothes, the appellant could not be held guilty of

the charges levelled against him.

18. A perusal of the evidence of Doctor (PW10) read with

the medical examination report at Exh.47 shows that the

hymen of the prosecutrix was found to be torn. The said

evidence cannot be discarded only on the basis that there

could be a tear of the hymen by activities of cycling and some

other sporting activities. The positive evidence of torn hymen

has to be read in the context of the evidence of the prosecutrix

regarding repeated sexual intercourse committed by the

appellant with her. The prosecutrix being less than the age of

16 is also a crucial aspect in this context. The question of

consent in the present case does not arise. Therefore, instead

of reading the medical evidence in isolation, by reading it along

with the evidence of the prosecutrix, it becomes evident that

the appellant cannot take advantage of the fact that the panch

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witnesses turned hostile, leading to there being weak evidence

as regards seizure of the clothes and other material. By

analysing the totality of evidence in the proper perspective,

along with the evidence of the investigating officer (PW9), it

becomes clear that the appellant cannot take advantage of the

fact that the two panch witnesses (PW4 and PW5) had turned

hostile in the present case.

19. The non-examination of staff of the lodge where the

appellant had taken the prosecutrix for sexual intercourse,

cannot be said to be fatal in the present case. This is because

the evidence of the prosecutrix, the victim in the present case,

is believable and it cannot be said that the same is inconsistent

or that it suffers from serious infirmities. Thus, even if only the

evidence of the prosecutrix is taken into consideration, since it

inspires confidence, no further corroboration is required to

prove the guilt of the appellant. In the case of Narender

Kumar .vs. State (NCT of Delhi) (supra), the Hon’ble

Supreme Court has reiterated the position of law in respect of

lack of necessity for corroborative evidence to prove the guilt

of the accused, when the evidence of the prosecutrix inspires

confidence. It has been held in the aforesaid judgment as

follows:-

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“16. It is a settled legal proposition that
once the statement of prosecutrix inspires
confidence and is accepted by the court as
such, conviction can be based only on the
solitary evidence of the prosecutrix and no
corroboration would be required unless there
are compelling reasons which necessitate the
court for corroboration of her statement.
Corroboration of testimony of the prosecutrix
as a condition for judicial reliance is not a
requirement of law but a guidance of
prudence under the given facts and
circumstances. Minor contradictions or
insignificant discrepancies should not be a
ground for throwing out an otherwise reliable
prosecution case. A prosecutrix complaining
of having been a victim of the offence of rape
is not an accomplice after the crime. Her
testimony has to be appreciated on the
principle of probabilities just as the testimony
of any other witness; a high degree of
probability having been shown to exist in
view of the subject matter being a criminal
charge. However, if the court finds it difficult
to accept the version of the prosecutrix on its
face value, it may search for evidence, direct
or substantial, which may lend assurance to
her testimony. (Vide:
Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. Anr., AIR 2003
SC 818: (2003 AIR SCW 253); and Vishnu v.

State of Maharashtra, AIR 2006 SC 508:2005
AIR SCW 6149)).”

20. In the present case, the evidence of the prosecutrix is

certainly believable and it cannot be said that she has deposed

falsely at the behest of any third person. In fact in the case of

Bharwada Bhoginbhai Hirjibhai .vs. State (supra), the

Hon’ble Supreme Court has observed that it is inconceivable

that a minor girl would invent a false story of being tortured by

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her parents to falsely rope in the accused on the basis of

supposed enmity between the parents and the accused. In the

present case there is no evidence on record of any such

enmity or rivalry between the prosecutrix and her parents on

one hand and the appellant on the other. In such a situation, it

cannot be said that the evidence of the prosecutrix cannot be

believed and that there is insufficient corroboration, which

would accrue to the benefit of the appellant in the facts and

circumstances of the present case.

21. The learned counsel for the appellant has relied upon

a number of judgments of this Court to emphasis on the need

of corroboration by medical evidence, chemical analysis and

other factors to prove the case of rape against an accused. In

the said judgments, the Court was concerned with cases where

it was found that the version of the prosecutrix was required to

be supported by corroborative evidence. Each case depends

on its own facts and circumstances. In the present case,

particularly the evidence of the prosecutrix and the other

evidence on record clearly shows that the prosecution has been

able to prove its case against the appellant, notwithstanding

the fact that the panch witnesses (PW4 PW5) had turned

hostile. It cannot be said that there was insufficient evidence

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to prove that the prosecutrix was less than 16 years of age at

the time of the incident. In such a situation, the prosecution

has been able to prove all the charges against the appellant

(accused). It is clear from the evidence and material on record

that the appellant, being a teacher had committed rape on the

prosecutrx, that the prosecutrix was under 16 years of age at

the time of the incident and that the appellant had repeatedly

committed the said act against the prosecutrix, thereby making

him liable for conviction under Section 376 (2) (f) (i) and (n) of

the IPC. The trial Court was justified in convicting the appellant

not only under the said provision but also under Sections 4 and

6 of the POCSO Act for having committed penetrative sexual

assault on the prosecutrix.

22. In the light of the above, it is found that there is no

merit in the present appeal. Accordingly, it is dismissed and

the conviction and sentence imposed by the trial Court is

confirmed.

(Manish Pitale, J. )

halwai/p.s.

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